201 McMorran Blvd.
Port Huron, MI 48060
201 McMorran Blvd.
Port Huron, MI 48060
Thursday, February 4, 2010
Plaintiff, Case No.# 09.002175-PZ-K
Plaintiff’s Case Evaluation Summary
NOW COMES, Plaintiff, Arthur L. Lockett, pursuant to Administration Order 1997-1, hereby submits his Case Evaluation Summary.
Plaintiff seeks Relief from judgment in Case ID: 07P00808OM a case procured by Extrinsic Fraud, Fraud upon the Court, and thee Effects Thereof. Plaintiff contends, Kenaya made a false report that night of November 21st 2006. The police in response employed excessive use of force against Lockett. The entire time, Kenaya has stolen money from Lockett’s Bridge Card. Plaintiff confronted Kenaya concerning funds he illegally removed from Lockett’s bridge-cards. And Kenaya did perjure himself on a matter that was critical to the City’s case, and Plaintiff’s defense being the “right to resist unlawful restraints“..
Plaintiff, after discovery, will seek to join additional defendants, incorporate and re-allege the relevant portions from those pleadings of Case No. 08-CV-14770-DT., into this action.
In an attempt to explain and aid this panel in understanding why the City, through attorney John Livesay, initially decided to bring their fraudulent criminal charges against plaintiff, the panel need only to look to the court holding’s in Arthur L. Lockett v. Deutsche Bank National Company and Trustee et at.,
Hon. Denise Page Hood. United States District Court, Eastern District of Michigan. Case No. 08-CV-14770-DT, and the January 22nd 2009 Order of Summary Dismissal.
The Court Held: “In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus,28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983. Preiser v. Rodriguez, 411 U.S. 475, 494, and Wolff v. McDonnell, 418 U.S. 539, 554, distinguished. The foregoing conclusion follows upon recognition that the common law of torts provides the appropriate starting point for the §1983 inquiry, see Carey v. .Piphus, 435 U.S. 247, 257-258; that the tort of malicious prosecution, which provides the closest analogy to claims of the type considered here, requires the allegation and proof of termination of the prior criminal proceeding in favor of the accused, see, e.g., Carpenter v. Nutter, 59 P. 301; and that this Court has long been concerned that judgments be final and consistent and has been disinclined to expand opportunities for collateral attack on criminal convictions, see, e.g., Parke v. Raley, 506 U. S. ___, ___. Although the issue in cases such as this is not, therefore, the exhaustion of state remedies, the dismissal of Heck’s §1983 action was correct because both courts below found that his damages claims challenged the legality of his conviction. Pp. 3-14. 997 F. 2d 355, affirmed.” , Scalia, J., who delivered the opinion of the Court, , in which Rehnquist, C. J., and Kennedy, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment, in which Blackmun, Stevens, and O’Connor, JJ., joined.
The City’s attorney sought to invoke this rule of law by use of perjury and other false evidence in open court, against Plaintiff, so that plaintiff would be unable to bring any action for relief for the vicious physical assault he sustained at the hands of five police officers of the Port Huron‘s police department. And other crimes. Plaintiff is alleging the following:
1). That Defendants’ under color of law and in violation of Michigan Law and 42 U.S.C.S 1983, have subjected Plaintiff to the deprivation of rights, privileges and immunities secured by the Michigan, and Fourteenth Amendment to the United States, Constitution.
2). Defendants deliberately prosecuted Plaintiff using the unjustifiable and arbitrary standard of care. This was done with a discriminatory purpose and had a discriminatory and devastating effect.
3). Defendants’ purposefully through a court of law where a judge who should refrain from any dealings that tend to reflect adversely on the judge’s impartiality or judicial office, interfered with the proper performance of judicial duties, exploited their judicial positions, and involve the court in a transaction with other lawyers and persons that come before the court on which the judge served for the purpose of committing fraud upon the court. This actions have directly and proximately caused harm to Plaintiffs.
4). In violation of Michigan Law and 42 U.S.C Section 1985(2), Defendants conspired together for the purpose of impeding, hindering, obstructing, or defeating, the due course of justice in Michigan with the intent to deny Plaintiff the equal protection of the laws. Defendants’ actions have directly and proximately caused damage to the Plaintiff.
5). In violation of Michigan Law and 42 U.S.C. Section 1983(3), Defendants conspired together to go into a court and disguise the truth to deprive Plaintiff of the equal protection of the laws and of equal privileges and immunities under the laws. Defendants’ actions have inherently directly and proximately caused harm to plaintiffs.
6). Defendants knowingly procured arrest warrants based on baseless allegations to deprive Plaintiff of liberty.
7). Defendants’ conduct amounts to a raw, wanton and arbitrary abuse of police power. No reasonable police officer could have believed that plaintiff had violated the law. Said conduct amounts to an intentional invasion of guaranteed privacy interests resulting in the search and seizure of Plaintiffs without probable cause. Defendants’ actions directly and proximately caused damage to Plaintiff.
8). Defendants intentionally and with conscious indifference deprived Plaintiff medical care, liberty, and basic dignity without due process of law. Their actions of selectively targeting the plaintiff through fraud upon the court and their wanton departure from established practice worked a deprivation of Plaintiff liberty interests in a manner unrelated to any legitimate object of arrest that shocks the conscience.
9). Defendants had the primary duty not to convict plaintiff, but to see that justice was done and not to suppress facts or secrete witnesses capable of establishing the innocence of the accused.
10). Further, Defendants had the duty to insure a fair trial for both the City and the Plaintiff and to not impair the Plaintiff’s presumption of innocence.
11). Defendants intentionally or with conscious indifference breached these duties, violating Plaintiffs right to due process and directly and proximately causing him harm.
12). Defendants have established and caused the commencement of a criminal prosecution against the plaintiff that must terminated in Plaintiff’s favor.
13). The Plaintiff is innocent. There was no probable cause for the criminal proceedings. The charges were filed with malice resulting in damage to the plaintiff.
14). Defendants have made an illegal, improper, or perverted use of the arrest warrant for purposes other than those approved by law and with no probable cause thereby causing damage to Plaintiff.
15). Defendants willfully directed, requested, or participated in Plaintiff’ detention without plaintiff’ consent and without authority of law thereby causing damage to Plaintiff.
16). Defendants intentionally or knowingly caused physical contact with Plaintiff when they knew or should have reasonably believed that Plaintiff regarded the contact as offensive or provocative. Defendant’s actions directly and proximately caused damage to Plaintiff.
17). Defendants as officers or employees of the City or of a political subdivision of the state acting or purporting to act in an official capacity have, because of Plaintiff’s exercise of basic rights, imposed an unreasonable burden on the Plaintiff.
18). A judgment is "void" only if it is beyond the power of the court to render. In general, that will be the case only if the court lacked jurisdiction over the person or over the subject matter of the action.
19). Plaintiff realized the fraud prior to his criminal trial when he asked the court appointed attorney (Margaret Kelly) for the missing documents of the transaction that had occurred on the Bridge-Card.
20). Plaintiff allege that the prosecutor (John Livesay (P-23123)) knew his witnesses were going to lie before taking the witness-stand, and were lying while on the witness stand. In fact, it was his plan by design.
21). Plaintiff specifically instructed his court appointed counsel, Margaret Kelly, to obtain copies of the transactions that had occurred on plaintiff ‘s bridge card. And counsel failed to do so.
22). Counsel refusal to obtain the requested documents allowed Kenaya to take the witness stand and lie to the jury with reckless abandonment.
23). Please note that Plaintiff had every right to seek to resolve the issue of the money that had been illegally removed from his bridge-card.
24). The police jumped the gun, and exacted excessive use of force against Plaintiff causing great bodily injury to Plaintiff’s person, subjecting themselves to civil and criminal liabilities.
25). Plaintiff was released from the St. Clair County Detention Center before daylight that night of his arrest without any charges being lodge against him…
26). Plaintiff went to file a complaint against the police that had assaulted him, and against Kenaya for the false report that cause the assault. See: Port Huron Police Complaint Number 06-17636.
27). John Livesay (P-23123), prior to trial, suppressed the documents Plaintiff’s requested, and the facts thereof, that would expose the falsehoods. The City went so far as to remove the sound from the video evidence. Also, the City sped up the video play-back to further distort presented trial evidence.
28). This is firsthand knowledge that the City prosecutor was certain of the lack of veracity of Kenaya statements and trial testimony, and his other witnesses. See trial transcripts starting at page 17:
Q when you called the police, what did you tell them?
A “Oh, there’s an individual here that is making a lot of racket and confrontational with the customers, and, you know, he wouldn’t leave.” They asked for his name, I believe, and I told them his name and they said they’d be over in a minute.
A All right, when the police got there, what happened?
Q There was four, five of them, I believe. They kind of surrounded him in different positions, and the one lady officer, I remember just saying, you know, “The gentleman wants you to leave; just leave the store
Q All right, then what happened?
A And I don’t recall, but he did reach in his pocket and that’s when the police kind of, kind of attacked him and held him down and he said he was just going for his wallet and that’s when he kind of resisted and they just handcuffed him after that.
Q All right, and did they then take him out of the store?
A Yes, they took him out of the store.
Q And what did you, what did you do then?
A I followed them out of the store just to see, you know, what was going to go on and they took him to the car and surprisingly he showed great strength. There was five of them trying to put him in the car and he wasn’t going in the car.
Q What did he do?
A He was standing still, showing great strength. I never seen anything like that before.
Q Well, I mean, what, what kind of actions was he, was he doing?
A Oh, he was just yelling and he was like real stiff and they were trying to put his head down and they couldn’t get him, and they asked him “If you don’t cooperate”, you know, “we’re going to have to taser you.”
Q And what happened then?
A They tasered him.
Q And then what?
A He dropped, he dropped.
Q Were they able to get him in the car then?
A Yes they were.
Q How far away from this—
A From the
Q ———where the police were
A from the front door to where the cops were positioned, they were closer to Dove Street, so I’m going to say about 50 feet.
Q So you were watching this across the parking lot——
Q ——from about 50 feet?
Q Now, does, does your store have any kind of security equipment in the store?
A Yes, we do.
Q After this incident back in November, have you seen the defendant?
A Yes, I have.
Q More than once?
A Just one time.
Q When was that?
A It was the day after that I got the subpoena. He had came (sic) into work and I was kind of shocked that I had seen him.
Q How long ago was that?
A About three, four weeks ago.
Q All right, he came into the store?
A Yes, he did.
Q Was there anyone else in the store?
A There was a gentleman in the back room.
Q And what happened?
A He had told me that if he—
Q Who is “he”?
A The defendant had told me if I showed up during trial that he would kill me.
Q What did you do in response to that?
A I mean, at the time, like I said I knew the individual. knew he wouldn’t like act on it from knowing him for the past year, but after, you know, seeing what had happened at the Virginia Tech ordeal, you know, you don’t know what somebody’s capable of.
Q Is that when you reported it?
A Yeah, yes, I did.
Q How long after you became aware of the Virginia Tech?
A Hour or two; I forget. I don’t recall when I called.
Q But it was at that same day?
A Yes, it was the same day.
Q Okay. And you reported the incident that had happened earlier?
A Yes, I did.
Q Initially, you——because you had known him, is that correct?
A Yeah, he never caused me any problems before, like I said, for three, four, five times a day he would come in, purchase stuff.
Q Okay. But you simply wanted to make a record of it?
A Yeah, I just didn’t know what was——
Defendants did not present that video at plaintiff’s criminal trial.
58). Upon cross examination Kenaya perjured himself several more times. CROSS-EXAMINATION by MS. KELLY:
Q Now, you stated that for the previous year Mr. Locket had come into your store three, four times a day, is that correct?
A Yes, he has.
Q And purchased things, is that correct?
A Yes, he has.
Q What kinds of things did he normally purchase there?
A Cigarettes, alcohol, pop, chips
Q Okay. And did he use food stamps or his bridge card?
A No, he didn’t, ma’am, neither.
Q Not ever?
Q Do you take bridge cards there?
A No, we don’t.
Q You don’t have one of those machines, or——
A No, we don’t.
Q Now, when he came in that day, you’re saying that he was asking for money?
A Yes, he was.
Q And he, he wasn’t discussing a bridge card with you?
A No, he wasn’t.
Q Now, had you ever told him no before?
A I told him no a couple of times, yes I have.
Q And those other times, what did he do?
A He just simply left. I told him I didn’t have no money for him, and he left. I didn’t want to make a habit of giving——you know, he said he was, he needed some help, so, you know, I give him ten, fifteen dollars, and he always paid me back.
Q Now, on this day, did he believe that there was an issue with a bridge card with you? Did he mention it at all with you?
A No, he did not.
Q Now, did Mr. Lockett at any time ask you to call the police?
A Yeah, he had told me——I had told him, “I’m calling the police”, and he said, “Go ahead, call the police.”
Q Did he actually ask you to call the police?
A No, he did not.
Q Did he, he tell you that he, he wanted to talk to the police?
A No he did not.
Q When the police came, you say they asked him to leave, as well?
A Yeah, they positioned themselves and they just asked the gentleman to, you know.
Q And what else did Mr. Lockett say besides, “No, I don’t want to leave”; isn’t it true that he, he tried to explain that he had an issue with——
A No, he didn’t.
Q ——some twenty dollars.
A No, he didn’t.
Q You did not hear him say that to the police?
A Well, the detective asked me what was this about, and I said he wanted to borrow twenty dollars.
Q …….did you overhear what Mr. Lockett said to the police?
A No, I did not.
78). Moreover the investigative material withheld from Plaintiff was available during plaintiff’s criminal trial. The court appointed attorney, the City’s prosecuting attorney and the trial Judge had an affirmative duty to obtain, to disclose and to ordered produced, respectfully, for plaintiff’s use during the course of his criminal trial the document he requested were needed for presentation to the jury and impeachment of defendants’ witnesses at trial.
79). The Defendants defense is "frivolous" as to all of defendants’ defenses to liability, as all of the following conditions are met.
80). The City’s primary purpose in initiating the original criminal action or asserting any defense in this action is to further harass, embarrass, or injure the Plaintiff.
81). The City had no reasonable basis to believe that the facts underlying defendants’ legal position in the criminal case were in fact true. Thus, rendering defendants’ legal position devoid of arguable legal merit.
82). In this action alleging legal and medical deprivation, there has been, in this case, a breach of the applicable standards of care.
83). The Plaintiff seek to exercise provision under MCR. Rule 2.310, Requests for Production, to produce and permit the requesting party or someone acting for that party to inspect and test or sample tangible things that constitute or contain matters within the scope of MCR 2.302(B) and that is in the possession, custody, or control of the person on whom the request is served and to permit entry on land.
84). The Defendants at all times relevant were acting under color of law and pursuant to official policy or custom.
85). John Livesay, acting on behalf of the City of Port Huron, its Police Officers, and the Industrial Park Party Store, did knowingly, recklessly, or with gross negligence failed in their duties to refrain from:
(a) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(b) unlawfully and maliciously arresting, imprisoning and prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(c) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States and the laws of the Great State of Michigan; and
(d) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities.
86). Relief from a judgment by an independent equitable action has been recognized in Michigan as proper on numerous grounds, including extrinsic fraud in the procurement of a judgment. Plaintiff’s evidence, while seeking relief from a judgment by an independent equitable action, must and will show he had a meritorious defense in the underlining case and has a cause of action where equitable relief should be given.
87). Plaintiff request the court to order the City to respond to a particular of Plaintiff’s allegations that before Kenaya testified, the City was in possession of, and deliberately failed to produce to the Plaintiff, the information needed to expose the falsehoods Kenaya promulgated from the witness stand, and what are their duties as officers of the court under these set of facts and circumstances.
88). This court should direct the City to answer the questions: “What did the city attorneys know about Kenaya’s lies, and when did they know it.” The City’s response should answer those crucial questions…to first reverse plaintiff’s convictions in Case ID: 07P00808OM based on the undisputable conclusion addressing the intent of, and the role played by the city attorney concerning the issue whether Plaintiff’s conviction is obtained by the jury’s reliance on willful perjured trial testimony and other false documents.
89). Plaintiff notes the court’s need to reached the issues of whether (1) the City knew Kenaya intended to commit perjury and obstruction of justice before the prosecutors put him on the stand. And (2) whether setting aside this tainted conviction is imperative if the integrity of the state and federal judicial system is to be maintained against Fraud upon the Court and deprivation of basic human rights. "At some level, there’s a stink factor" here. With a finding of fact that there’s a fraud upon the court, nor can plaintiff or the court subsequently ignore that incredible effect such a finding would have on the subsequent proceedings.
90). Plaintiff contends the Defendants should not escape justice, nor be allowed to prosper, from contempt and criminal conduct that has long been hostile to the moral fabric of our society and the underpinnings of our legal system.
91). Sanctions, in a variety of large sums attempting to encompass the virtually limitless ways litigants manage to misbehave. Then comes, fraud upon the court.
92). One method have always been part and parcel of our legal system. Dismissal with prejudice has long been available as the ultimate civil sanction against litigation misconduct, but is often bypassed in the belief that such efforts rarely succeed at the trial court level and are frequently reversed on appeal when they do.
93). In the past this sentiment was understandable. Older appellate decisions upholding dismissals with prejudice for "fraud on the court" were decisively out-numbered by decisions reversing such dismissals as being too severe.
94). Recent decisions, including Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla. 1st DCA April 28, 2003), and Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003), have been more favorably disposed to affirm dismissals with prejudice in serious, palpable "fraud on the court" cases. .
95). Of course, therein lies the question, what precisely are the effects this "fraud on the court" has produced in this case and how to remedy them.
96). Defendants’ conduct is sufficiently egregious to distinguish it from arguable forgetfulness or misunderstanding.
97). Defendants bad conduct is enough to grant judgment in plaintiff‘s favor where as here, the initial criminal complaint was premised upon a lie.
98). This defendants’ terrible and indisputable willful lie about facts central to the City’s initial arrest warrant suffices to destroy Judge: C.S. Platzer court’s jurisdiction.
99). The City’s series of lies which made it difficult for the jury to ferret out the true facts but, in the end, must fail to succeed against proper application of law concerning fraud upon the court.
100). Defendants, the attorney for the City of Port Huron, broke the law, despite being willful, was also bold and daring enough to deliberately corrupt the courts and deliberately set in motion an unconscionable plan calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the jury and by unfairly “hampering the presentation of Plaintiff’s defense.
101). It was not enough, and not by chance, the City of Port Huron’s misconduct includes procedural violations, but also an attorney is an accomplice to the fraud involving repeated deliberate attempts to obstruct discovery by failing to comply with the rules of law and other court orders.
102). The Court will need to employ a demanding standard for independent actions alleging fraud upon the court, requiring:
(1) an intentional fraud;
(2) by an officer of the court;
(3) which is directed at the court itself; and
(4) that in fact deceives the court.
Plaintiff pleadings demonstrates ultra vire acts which clearly satisfies the elements required of this demanding standard.
103). The Eighth Circuit has stated that the fraud on the court must constitute “egregious misconduct . . . such as, in this case, the fabrication of evidence by counsel. ” In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d at 195 (citations omitted).
104). Plaintiff admits each case must be assessed and adjudicated according to its own unique facts.
105). The City’s attorney is guilty of terrible and indisputable willful lies about facts central to the underlining case. And set in motion a series of acts and lies which made it difficult for the Jury and Plaintiff to ferret out all the true facts and extent and involvement of others but, in the end, must fail to succeed only because of the diligence of the offending litigant, the City of Port Huron, despite being willful, acted illegally and with ill intent towards Plaintiff by way of fraud upon the court..
106). The misconduct is more than procedural, involving repeated deliberate attempts to obstruct justice by failing to comply with clear and well-settled law, court orders and the like. Serious, palpable, "fraud upon the court" conduct.
107). The basic standards governing fraud on the court are reasonably straightforward. See: Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998).
108). This court will find all requisite elements met in this case. That when Plaintiff’s conviction is obtained by the City presentation of testimony known to that Court Officer to have been perjured, due process is violated. The clause is not deemed satisfied by mere notice and hearing, where, as here, the City has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving Plaintiff of liberty and other redress through a deliberate deception of court and jury by the presentation of testimony known to be perjured and by unfairly “hampering the presentation of Plaintiff’s defense. Such a contrivance is inconsistent with the rudimentary demands of justice.
109). Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998), is one of the leading cases in this area governing the dismissal based on fraud. In Cox, the court anticipated, although had apparently underestimated, the seductive power of this remedy. The court took pains to try to express how narrow the remedy should be:
The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobile Oil Corp., 892 F.2d 1115,1118 (1st Cir.1989). When reviewing a case for fraud, the court should “ consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89,90(Fla.4thDCA 1994).
110). Plaintiff seeks to exercise provisions under MCR. Rule 2.309 Interrogatories to Parties. The facts of this case make out the claim defendants unfairly “hampered the presentation of Plaintiff’s defense and use of perjury which, as explained above, forms the basis for the fraud upon the court claim and does reach the narrow test set out in Cox.
111). At all times relevant to this Complaint, an attorney is an accomplice to the fraud: Court Officers, as well as Police officers of the City and Sheriff’s Department, members of Mercy Hospital, and members of the Industrial Park Party Store were acting in concert or under the direction and control of Defendants, the City of Port Huron.
112). Acting under color of law and pursuant to official policy or custom, defendants knowingly, recklessly and with gross negligence failed to instruct, supervise, control, and discipline on a continuing basis Defendant police officers and District Attorney in their duties to refrain from:
(a) unlawfully and maliciously harassing Plaintiff, a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(b) unlawfully and maliciously arresting, imprisoning and prosecuting Plaintiff, a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities,
(c) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States and the laws of the state of Michigan; and
(d) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities. Including but not limited to:
(2) in unjust enrichment,
(3) management of the property of another (or "negotiorum gestio",
(4) the reception of the thing not due and
(5) the various forms of extra-contractual responsibility between persons known as delicts and quasi-delicts, which are similar to tort at common law. Despite the relatively distinct nature of these various sources of obligations, they are considered together under a law of obligations on the basis that all are instances where a debtor has a duty to execute a certain performance towards a creditor.
113). Defendants’ abuse of process is a common law intentional tort. It is to be distinguished from malicious prosecution, the another type of tort in this case that involves misuse of the public right of access to the courts.
114). The elements of a valid
cause of action for abuse of process in most common law jurisdictions are as follows:
115). It is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action.
116). "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court.
117). The person who abuses the process as defendants has are interested only in accomplishing an improper purpose that is collateral to the proper object of the process and that offends justice, such as their unjustified arrest and an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" that is to be considered as capable issues of abuse by the defendants in this case. Blackstone v. Cashman, 860 N.E.2d 7, 448 Mass. 255 (2007)
118). [T]he common law tort of abuse of process comprises the following elements:
(1) ‘process’ was used;
(2) for an ulterior or illegitimate purpose;
(3) resulting in damage." Gutierrez v. Massachusetts [supra] . . . . ,The tort has been described as usually involving a form of coercion to obtain collateral advantage not properly involved in the proceeding itself, similar to extortion. See Powers v. Leno, 24 Mass. App. Ct. 381, 383-384 (1987), and authorities cited.
119). It is sometimes said that "[t]he subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed . . . ." Kelley v. Stop & Shop Cos., 26 Mass. App. Ct. 557, 558 (1988), quoting from Restatement (Second) of Torts § 682,comment a (1977).
120). It is immaterial to an abuse of process claim that the process was properly issued, that it was obtained in connection with a proceeding brought with probable cause, or that the proceeding terminated in favor of its proponent. Gutierrez . . ., supra, at 408. Adams v. Whitman, 62 Mass. App, .Ct. 850, 822 N.E.2d 727 (2005).
121). Under the provisions of MCR 2.118, governing the amendment of pleadings, Plaintiff will move the trial court to not deny plaintiff the opportunity to amend his pleadings to add other parties or otherwise amend his complaint. Indeed, plaintiff should be allowed to amend his complaint.
No man shall be taken, (that is) restrained of liberty, by petition, or suggestion to the King, or to his Council, unless it be by indictment, or presentment of good, and lawful men, where such deeds be done. Statement of Fact as to:
City Of Port Huron;
Port Huron Police Department;
Industrial Park Party Story;
Kevin K. Kenaya;
Claim as to all Known and Unknown John and
Jane Doe Defendants;
123). Defendants owe a duty to refrain from injury to plaintiff by willful and wanton conduct. The Defendants with the aid of other government employees of the city of Port Huron and St. Clair County, did in fact, commit the following acts against your Plaintiff:
Excessive use of force,
Deformation of character,
Malicious abuse of process,
Violation of Civil Rights Act,
Violation of 42 U.S.C. 1983: arrest,
Violation of 42 U.S.C. 1983: conspiracy,
Violation of 42 U.S.C. 1983: strip search,
Intentional infliction of emotional distress,
Violation of 42 U.S.C. 1983: refusing or neglecting to prevent; Violation of 42 U.S.C. 1983: detention and confinement, reserved for negligence (until 6 months after presentment),
124). On November 21st, of 2006, Plaintiff confronted Kenaya concerning funds that Kenaya had removed from Plaintiff bridge-card that he had not authorized.
125). Kenaya indicated that he had only removed $20.00 over the $50.00 amount, for Tax, because Plaintiff was late on the repayment of the $50.00 loan.
126). Plaintiff demanded the return of the $20.00 and Kenaya refused indicating that he had lost over $5,000.00 on the Michigan verses Ohio State football Game, that had he won he would be glad to give Plaintiff $50.00 dollars.
127). Plaintiff demanded that Kenaya returned the money, explaining to Kenaya, that he needed his money for things like food, that he also needed gas for the car as plaintiff had to take his wife to work the next day.
128). Defendant, Kenaya, continued his refusal indicated that the $20.00 dollars was tax for being late on repayment on the loan, and that Plaintiff knew the game, "you late, you pay."
129). Plaintiff explained to Kenaya, that he would see him in jail for taking that money off his bridge-card, that it was a felony, as well as a federal offence.
130). Kenaya became very angry and began attempts to employ persons under his employment, as well as persons coming into the store off the streets, to expel Plaintiff from the store.
131). When that didn’t work for him, he called the police and indicated that Plaintiff was an unwanted vagrant harassing his customers.
132). The police did not follow the law because at the time of Plaintiff’s arrest, the police had no probable cause or a reasonable basis for the arrest.
133). The term false arrest is sometimes used interchangeably with that of the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment. A false arrest must be perpetrated by one who asserts that he or she is acting pursuant to legal authority, whereas a false imprisonment is any unlawful confinement.
134). The Police and Sheriff’s arrests of plaintiff was without any probable cause or reasonable basis.
135). The Defendants has committed the torts of false arrest and false imprisonment. The defendants has acted under the assumption of legal authority to deprive a person unlawfully of his or her liberty of movement.
136). The defendants has committed the tort of false imprisonment because he or she unlawfully restrains plaintiff’s freedom of movement.
137). The defendants has knowingly gave false information in order to have plaintiff arrested thus committed the tort of malicious prosecution.
138). Plaintiff’s contends defendants directly or indirectly caused plaintiff to be convicted of a crime for which he is innocence and to suffer a baseless trial of which verdict has resulted in a miscarriage of justice.
139). Plaintiff contends the law prohibiting defendants conduct was well established law at all times relevant.
140). Plaintiff’s contends defendants has perfected a fundamental abdication of their duty to conduct any kind of investigation whatever to avoid according plaintiff redress.
141). Plaintiff contends he has a Right to Resist any Unlawful Restraint.
142). Plaintiff contends he did not so much as argue with the officer, that he simply protested the unlawful restraint.
143). Plaintiff contends he did not cause defendants to arrest him by remonstrating with nor criticizing any officers while he were performing any duty, or anything that amount to obstructing, hindering, or interfering with the police defendants.
144). Plaintiff contends he intended only to assert rights, seek clarification and obtain information in a peaceful way.
145). Plaintiff’s contends he made no verbal refusal to provide his identification, and that he did not hinder or prevent the defendants from completing any citation or any legal arrest of plaintiff.
146). Plaintiff contends that there were no probable cause or any reasonable basis for the trespassing and resisting an officer charges.
147). Plaintiff contends the Port Huron Police acted willfully and their actions were without probable cause or otherwise unlawful. As a result, we have the assault and battery upon plaintiff person.
148). Plaintiff contends Kenaya’s false police report of trespassing against plaintiff resulted in plaintiff false arrest and imprisonments as well.
149). Plaintiff contends the prosecution of him, all of them, were malicious prosecutions and that defendants acted "with implied malice toward Plaintiff.
150). Plaintiff contends defendants made false allegations in a police report indicated falsely that plaintiff had committed the acts of Eluding a
police officer who is attempting to arrest the individual; Used or threatening to use force against an officer during an arrest; and Providing an officer with false identification (either verbally or by presentation of a false official document, or fake ID),
151). Plaintiff contends Liberty protects the plaintiff from unwarranted government intrusions into a dwelling or other private places of the plaintiff, and, defendants denied plaintiff that basic right.
152). Plaintiff contends Liberty protects the plaintiff in other spheres of his life and existence, outside the home, this to were denied plaintiff.
153). Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions as Plaintiff was merely expressing to the police that he had been robbed by Kenaya.
154). Plaintiff contends the defendants failed to give any legal reason for the arrest. Plaintiff contends he merely asked the officers “why are you taking me to the back of the store?“ when he received defendants’ angry reaction.
155). Plaintiff contends he demanded that he be released from the handcuffs, however, the defendants assaulted him instead.
156). Plaintiff contends defendants proceeded to grab Plaintiff, twisted Plaintiff’s arms, pushing them painfully above his head, that the defendants re-dislocating plaintiff’s left shoulder, and that he at present has continuing pain in that shoulder and in both arms and lower back…
157). Plaintiff contends that when he pulled his arms attempting to escape the pain, Plaintiff was immediately tasered four times by the defendants, the first taser was to Plaintiff inter right thigh, the seconded taser was to the outer right forearm, the third was to Plaintiffs outer left forearm. The forth one was to the spine of plaintiff back.
158). Plaintiff was taken to the hospital as a result of the lawless conduct, however, the arresting officers continued to beat Plaintiff about the head as he sat with his hands cuffed behind his back each time Plaintiff attempted to explain himself.
159). Plaintiff was not examined by any doctor at the hospital that night and was taken to the county jail instead. When Plaintiff began to complain about this pain he’s experiencing he was released and told to take himself to the hospital.
160). The only charges was failing to pay booking fees. The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. State v. Harrell , 67 N.C. App. 57, 60, 312 S.E.2d 230, 234 (1984). The Fourth Amendment protection includes the right not to be arrested without probable cause. Id . at 61, 312 S.E.2d at 234. Thus, Courts has addressed whether, under the specific facts and circumstances, there was probable cause for defendant’s arrest under law clearly established law at the time.
161). Plaintiff contends that no probable cause for arrest existed at the moment the defendants arrested plaintiff because the required facts and circumstances within defendants’ knowledge was not reasonably trustworthy information sufficient to warrant a